Opinion
No. EF2020-534
10-30-2020
CALVIN L. HARRIS, Plaintiff, v. JOSEPH C. REAGAN, Defendant.
Unpublished Opinion
PRESENT: HON. BRIAN D. BURNS ACTING SUPREME COURT JUSTICE
DECISION AND ORDER
HON. BRIAN D. BURNS ACTING SUPREME COURT JUSTICE
The parties have filed several motions in anticipation of a trial which is scheduled to commence on November 2,2020. The motions were made returnable for submission of papers. Hie court has considered all papers filed electronically in connection with the pending motions. The court has also reviewed applicable law in finding the following.
Testimony of Eileen Semmler, CPA, AEP
Defendant seeks an order permitting Eileen C. Semmler, CPA, AEP to provide expert testimony at trial about the likely tax and financial consequences of effectuating the relief sought by the plaintiff. Plaintiff filed a motion seeking an order precluding the expert testimony of Eileen Semmler. Defendant disclosed the identity and qualifications of Ms. Semmler in his Expert Witness Disclosure dated February 7, 2020.
In sum, defendant proffers that the testimony of Eileen Semmler will demonstrate that tlic tax consequences of Harris' interpretation of the agreements would be such that it would not be economically favorable. The admissibility and scope of expert testimony is committed to tire sound discretion of the court (Mariano v. Schuylerville Cent. Sch. Dist, 309 A.D.2d 1116, 1117, 766 N.Y.S,2d 388 [3rd Dept. 2003]), and such testimony is "proper when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror" (De Long v. County of Erie, 60 N.Y.2d 296, 307, 469 N.Y.S.2d 611 [1983]).
Plaintiff argues that Ms. Semmler's testimony must be precluded because she "has disclosed that she plans to testify as to the intent of the parties in entering into the Shareholder's Agreement". He further argues that the testimony is irrelevant.
While it is true that Ms. Semmler may not testify as to the parties' intent, she may still offer expert opinions about the tax consequences which could be probative of the parties' intent (see, Liberty Media Corp, v. Vivendi Universal, 874 F.Supp.2d 169, 175 [S.D.N.Y. 2012]). The motion to permit her testimony is granted for the limited purposes outlined above and the motion to preclude her testimony is denied.
Quashing subpoena duces tecum of Laurie Reagan, NBT Bank and CFCU
Defendant seeks an order quashing three subpoenas on the grounds that they are untimely, improper and being used to ascertain the existence of evidence.
Plaintiff contends that the documents sought demonstrate the dealerships have been paying for defendant's defense of the action. Plaintiff contends that the documents concern the source of the funding for the $15,000 monthly payments made to plaintiff by defendant.
It is well-settled that a subpoena duces tecum may not be used to ascertain the existence of evidence but is meant to compel the production of specific documents that are relevant and material to facts at issue in the pending proceeding (see, Constantine v, Leto, 157 A.D.2d 376, 378,557N.Y.S.2d 611 [3rd Dept. 1990]).
Plaintiff has failed to make a showing that the information sought is relevant. Accordingly, the subpoenas duces tecum are quashed.
Calvin Harris 2018 and 2019 tax filings
Defendant seeks an order, pursuant to CPLR 3101 (h) and 3126, precluding plaintiff from introducing evidence of his 2018 and 2019 tax returns based upon his alleged failure to supplement his discovery response in a timely manner.
Defendant sent plaintiff a First Set of Document Requests on May 30,2018, seeking plaintiffs tax returns from 2005 to present. The document required that plaintiff serve a supplemental response within thirty (30) days after discovery of the information. Although defendant had an authorization to obtain tax filings in March 2019, defendants states that because plaintiff had not yet filed his 2018 or 2019 tax returns, they could not be obtained.
Plaintiff was required to supplement his discovery responses under CPLR 3101, and his failure to do so warrants preclusion of the information pursuant to CPLR § 3126. Therefore, the motion to preclude plaintiff from offering evidence of his 2018 and 2019 tax returns is granted.
Violation of Scheduling Order
Defendant seeks an order declaring that plaintiff be limited, based upon an alleged violation of the court's July 28,2019 Scheduling Order, to calling, as witnesses, himself, witnesses proposed on defendant's witness lists and any who were deposed, and as to exhibits, only those documents which were marked during depositions and which appear on defendant's proposed exhibit list.
The court is vested with broad discretion in controlling disclosure and in the exercise of that discretion must work to prevent unfair surprise at trial (see, Nutting v. Ford Motor Co., 189 A.D.2d 1086,1088, 593 N.Y.S.2d 111 [3rd Dept. 1993]).
As to the five witnesses (Laurie Reagan, NBT Bank and CFCU representatives, and representatives from General Motors and Nissan) which were never identified as potential witnesses hi discovery, the introduction of the same this close to trial raises the specter of unfair surprise at the trial which the court must protect against. Pursuant to CPLR 3126(3), plaintiff is precluded from calling these five witnesses at trial. Even if the court were to overlook the late disclosure of the witnesses, their testimony is irrelevant.
Spoliation
Defendant previously filed a motion for spoliation sanctions, which did not include a return date. The court directed that any opposition papers be filed prior to the first date of jury selection. Plaintiff has been heard in opposition to the motion.
Defendant alleges that destroyed evidence related to the Agreement prepared by Attorney Drazen in 2006, the footnote generally, plaintiffs subsequent cooperation agreement and communications with Drazen from 2017-2019, and plaintiffs payments to Drazen. Defendant alleges that plaintiff should have anticipated litigation and was under an obligation to preserve the aforementioned evidence.
The court, in its discretion, may impose sanctions, including dismissal of a pleading, for spoliation of evidence where a litigant intentionally or negligently disposes of critical evidence before the opposing party has an opportunity to inspect them (see, Markel Ins. Co. v. Bottini Fuel, 116 A.D.3d 1143, 983 N.Y.S.2d 637 [3rd Dept. 2014]; CPLR3126[3]). "A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a 'culpable state of mind,' and 'that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense'" (Pegasus Aviation I, Inc, v Varig Logistica S.A., 26 N.Y.3d 543, 547,26 N.Y.S.3d 218 [2015][internal citations omitted]).
The issue will be determined after the evidence is reviewed at trial.
Use of Video Deposition, email and non-crime references
Plaintiff filed a motion in limine on October 21,2020 which, in addition to seeking preclusion of the expert testimony, seeks to limit the use, by defendant, of certain evidence each of which will be addressed separately. The motion was fded three days after the deadline to file motions in limine. Defendant has not demonstrated any prejudice to the late filing. Therefore, the court will consider the motions.
As to the use of the video deposition, plaintiff noted his objection to videotaping at the deposition because the notice did not disclose that it would be videotaped as required (see, 22 NYCRR § 202.15). Counsel indicated he was not going to stop the recording and let the deposition proceed. Plaintiff offered about 40 minutes of testimony before defense counsel sought to cure the defect with an amended notice. The court finds that neither the Second nor Third Amended Notices comply with the court rules. Defendant may offer a transcript of the deposition at trial, but the motion to preclude a videotape of the deposition is granted.
In the absence of any substantive opposition to the motion for an order prohibiting defendant from making any reference to a May 30,2013 email exchange between plaintiff and his Reed Smith counsel David Kochman, the motion is granted pursuant to CPLR § 3103(c) (see, Lipin v. Bender, 84 N.Y.2d 562, 620 N.Y.S.2d 744 [1994], As to any references to the criminal proceedings, while the court agrees that the details of the alleged crime and evidence in the criminal proceeding are not relevant to the instant action, the existence of the indictment, tlie procedural history, and the events which led both parties to enter into the contract are relevant. As such, evidence maybe offered for that limited purpose. It may not be used, however, on the issue of plaintiff s credibility.
Regarding reference to non-crime offenses, and specifically plaintiff s 2017 conviction for Harassment in the Second Degree, 2018 conviction for Driving While Ability Impaired, and 2018 conviction for Aggravated Harassment, CPLR § 4513 permits the use of criminal convictions for the purpose of affecting the weight of testimony. As to the Harassment in the Second Degree and Driving While Ability Impaired, those convictions are not for crimes (see, Penal Law § 10.00), and are not admissible under CPLR § 4513. Despite defendant's conclusion that the Aggravated Harassment is admissible as it tends to show moral turpitude to be relevant on the credibility issue, the court does not so conclude. Therefore, the evidence of the conviction may not be used.
Tire court has considered all other requests for relief and to the extent they are not specifically mentioned, they are denied.
NOW, THEREFORE, it is hereby
ORDERED, that the motions are determined as outlined above.